The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, lato sensu, ...
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The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, lato sensu, amounts to the right to the realization of justice. In such understanding, it comprises not only the formal access to a tribunal or judge, but also respect for the guarantees of due process of law, the right to a fair trial, and to reparations (whenever they are due), and the faithful execution of judgments. The right to an effective domestic remedy is a basic pillar of the rule of law in a democratic society. In its turn, the right of international individual petition, and the safeguard of the integrity of international jurisdiction, are the basic foundations of the emancipation of the individual vis-à-vis his own State.This is a domain that has undergone a remarkable development in recent years. The very notion of “victim” has been the subject of a considerable international case-law. The direct access of victims to international justice has been taking place in the most diverse circumstances, including situations of great adversity, or even defencelessness, of the complainants (e.g., abandoned or “street children”, undocumented migrants, members of peace communities in situations of armed conflict, internally displaced persons, individuals in infra-human conditions of detention, surviving victims of massacres). It is submitted that the right of access to justice belongs today to the domain of jus cogens. Without it, there is no legal system at all. The protection of the human person in the most adverse circumstances has evolved amongst considerations of international ordre public. Such recent evolution has been contributing to the gradual expansion of the material content of jus cogens.Less

The Access of Individuals to International Justice

Antônio Augusto Cançado Trindade

Published in print: 2011-08-01

The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, lato sensu, amounts to the right to the realization of justice. In such understanding, it comprises not only the formal access to a tribunal or judge, but also respect for the guarantees of due process of law, the right to a fair trial, and to reparations (whenever they are due), and the faithful execution of judgments. The right to an effective domestic remedy is a basic pillar of the rule of law in a democratic society. In its turn, the right of international individual petition, and the safeguard of the integrity of international jurisdiction, are the basic foundations of the emancipation of the individual vis-à-vis his own State.This is a domain that has undergone a remarkable development in recent years. The very notion of “victim” has been the subject of a considerable international case-law. The direct access of victims to international justice has been taking place in the most diverse circumstances, including situations of great adversity, or even defencelessness, of the complainants (e.g., abandoned or “street children”, undocumented migrants, members of peace communities in situations of armed conflict, internally displaced persons, individuals in infra-human conditions of detention, surviving victims of massacres). It is submitted that the right of access to justice belongs today to the domain of jus cogens. Without it, there is no legal system at all. The protection of the human person in the most adverse circumstances has evolved amongst considerations of international ordre public. Such recent evolution has been contributing to the gradual expansion of the material content of jus cogens.

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or ...
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In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such a right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non-reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints, put by security threats such as terrorism, on the full protection of freedom and human rights. This collection of chapters offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.Less

Access to Justice as a Human Right

Published in print: 2007-10-25

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such a right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non-reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints, put by security threats such as terrorism, on the full protection of freedom and human rights. This collection of chapters offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.

This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of ...
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This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.Less

Violeta Moreno-Lax

Published in print: 2017-09-07

This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.

Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations ...
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Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations Special Rapporteurs holding armed groups to account under this body of law are relatively commonplace. Motivated by this contradiction, this study aims to clarify when and how armed groups are bound by human rights law. It brings several key issues of clarification to the legal framework. The first part of the book presents a new perspective on the role that human rights law plays in the legal framework that applies to non-international armed conflict. In particular, the study investigates the normative added value that human rights law can bring vis-à-vis international humanitarian law. The second part of the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. Combining historical and comparative research with theoretical analysis on international legal personality, the research demonstrates what the legal frameworks of belligerency, insurgency, and international humanitarian law can tell us about when and how such groups may be bound by human rights law. The third part of the book tests and investigates the four most utilized theories of how armed groups are bound by human rights law, examining (i) treaty law, (ii) control of territory, (iii) international criminal law, and (iv) customary international law. The book’s conclusions are drawn together thematically and contain important practical recommendations for practitioners in this field.Less

The Accountability of Armed Groups under Human Rights Law

Katharine Fortin

Published in print: 2017-08-03

Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations Special Rapporteurs holding armed groups to account under this body of law are relatively commonplace. Motivated by this contradiction, this study aims to clarify when and how armed groups are bound by human rights law. It brings several key issues of clarification to the legal framework. The first part of the book presents a new perspective on the role that human rights law plays in the legal framework that applies to non-international armed conflict. In particular, the study investigates the normative added value that human rights law can bring vis-à-vis international humanitarian law. The second part of the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. Combining historical and comparative research with theoretical analysis on international legal personality, the research demonstrates what the legal frameworks of belligerency, insurgency, and international humanitarian law can tell us about when and how such groups may be bound by human rights law. The third part of the book tests and investigates the four most utilized theories of how armed groups are bound by human rights law, examining (i) treaty law, (ii) control of territory, (iii) international criminal law, and (iv) customary international law. The book’s conclusions are drawn together thematically and contain important practical recommendations for practitioners in this field.

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has ...
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The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has deported tens of millions of noncitizens (“aliens”). Many are undocumented, but many others are long-term legal residents with U.S. families. Deportation has torn through many communities like a capricious tornado: touching down suddenly and leaving a trail of devastation in its wake. It has had profound, though still-understudied, effects on individuals, families, and communities, both in the U.S. and in the countries to which deportees are sent. The Obama Administration has continued—and actually expanded—the deportation system. The U.S. has now created what may be termed, somewhat provocatively, a new American diaspora: a forcibly uprooted population of people with deep and cohesive connections to each other and to the nation-state from which they were removed. Once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe isolation, alienation, persecution and, sometimes, death. Many may never be able to return. This book now considers the current U.S. system. It examines U.S. deportation as it works and as it might work more justly and fairly. Addressing various political, social, philosophical and legal issues, the author considers how deportation works within the ‘rule of law.’ Concluding that the U.S. deportation system remains an anachronistic, ad hoc, legally dubious affair, the book proposes a more human rights-oriented, humane and rational deportation system.Less

Aftermath : Deportation Law and the New American Diaspora

Daniel Kanstroom

Published in print: 2012-07-30

The United States has undertaken a radical, unprecedented social experiment with massive immigration and deportation enforcement. Since the passage of harsh new deportation laws in 1996, the U.S. has deported tens of millions of noncitizens (“aliens”). Many are undocumented, but many others are long-term legal residents with U.S. families. Deportation has torn through many communities like a capricious tornado: touching down suddenly and leaving a trail of devastation in its wake. It has had profound, though still-understudied, effects on individuals, families, and communities, both in the U.S. and in the countries to which deportees are sent. The Obama Administration has continued—and actually expanded—the deportation system. The U.S. has now created what may be termed, somewhat provocatively, a new American diaspora: a forcibly uprooted population of people with deep and cohesive connections to each other and to the nation-state from which they were removed. Once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe isolation, alienation, persecution and, sometimes, death. Many may never be able to return. This book now considers the current U.S. system. It examines U.S. deportation as it works and as it might work more justly and fairly. Addressing various political, social, philosophical and legal issues, the author considers how deportation works within the ‘rule of law.’ Concluding that the U.S. deportation system remains an anachronistic, ad hoc, legally dubious affair, the book proposes a more human rights-oriented, humane and rational deportation system.

The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women ...
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The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development.Less

Anti-Discrimination Law and the European Union

Mark Bell

Published in print: 2002-06-13

The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development.

This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have dominated ...
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This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have dominated international discourse’. If Westerners have their own concept of human rights, and if they are ‘human’ rights at the same time, then the following question arises: In precisely what way are they Western? And if they were in some sense Western in 1948, are they still so in 2005? The book is organized as follows. Part I presents arguments which tend to claim that human rights are Western on the basis of their historical background. Part II focuses on arguments based on the secular basis of human rights. Part III engages the economic dimension of the issue, with the rise of capitalism and its role in the context of human rights constituting the distinguishing feature of this dimension. The arguments in Part IV involve concepts of universality, rationality, philosophy, and ethics, each in turn providing the basis for a set of arguments. Part V presents arguments in which the claim that human rights are Western is associated with the concept of modernity. Part VI comprises arguments regarding the alleged Westernness of human rights in which the religious element plays a major role. The experience of the non-Western world in relation to the West, as characterized by colonialism, imperialism, racism, and parochialism, constitutes a natural grouping by itself and forms Part VII of the book. Part VIII presents arguments that take aim at the Westernness of human rights, without necessarily resorting to larger frames of references which characterized the preceding arguments. Finally, Part IX brings together arguments which are related to the institutional dimension of the human rights discourse as distinguished from the ideological and other dimensions of the discourse.Less

Are Human Rights Western? : A Contribution to the Dialogue of Civilizations

Arvin Sharma

Published in print: 2006-04-06

This book attempts to examine the assumptions that human rights are Western, that Westerners have ‘their own concept of human rights’, and that ‘Western ideas of human rights have dominated international discourse’. If Westerners have their own concept of human rights, and if they are ‘human’ rights at the same time, then the following question arises: In precisely what way are they Western? And if they were in some sense Western in 1948, are they still so in 2005? The book is organized as follows. Part I presents arguments which tend to claim that human rights are Western on the basis of their historical background. Part II focuses on arguments based on the secular basis of human rights. Part III engages the economic dimension of the issue, with the rise of capitalism and its role in the context of human rights constituting the distinguishing feature of this dimension. The arguments in Part IV involve concepts of universality, rationality, philosophy, and ethics, each in turn providing the basis for a set of arguments. Part V presents arguments in which the claim that human rights are Western is associated with the concept of modernity. Part VI comprises arguments regarding the alleged Westernness of human rights in which the religious element plays a major role. The experience of the non-Western world in relation to the West, as characterized by colonialism, imperialism, racism, and parochialism, constitutes a natural grouping by itself and forms Part VII of the book. Part VIII presents arguments that take aim at the Westernness of human rights, without necessarily resorting to larger frames of references which characterized the preceding arguments. Finally, Part IX brings together arguments which are related to the institutional dimension of the human rights discourse as distinguished from the ideological and other dimensions of the discourse.

Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion give an answer to the question about exactly when personhood begins? Can a law which permits late ...
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Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion give an answer to the question about exactly when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? These are just some of the questions this book sets out to address. An extended analysis of the moral and legal status of abortion, the book offers an account of abortion which keeps philosophical disagreement about ‘personhood’ at the centre of the debate. Structured in three parts the book considers the relevance of prenatal personhood for the moral and legal evaluation of abortion; traces the key features of the conventional debate about when personhood begins; and explores the most prominent current problems in abortion ethics literature, including the human equality problem and the difference between abortion and infanticide. It examines approaches abortion law and regulation as well as the differing attitudes to selective abortion on grounds of sex and fetal disability. The book concludes with a snapshot into the current controversy surrounding the scope of the right to conscientiously object to participation in abortion provision.Less

Arguments about Abortion : Personhood, Morality, and Law

Kate Greasley

Published in print: 2017-01-12

Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion give an answer to the question about exactly when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? These are just some of the questions this book sets out to address. An extended analysis of the moral and legal status of abortion, the book offers an account of abortion which keeps philosophical disagreement about ‘personhood’ at the centre of the debate. Structured in three parts the book considers the relevance of prenatal personhood for the moral and legal evaluation of abortion; traces the key features of the conventional debate about when personhood begins; and explores the most prominent current problems in abortion ethics literature, including the human equality problem and the difference between abortion and infanticide. It examines approaches abortion law and regulation as well as the differing attitudes to selective abortion on grounds of sex and fetal disability. The book concludes with a snapshot into the current controversy surrounding the scope of the right to conscientiously object to participation in abortion provision.

The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant contribution to ...
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The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant contribution to the literature on the right to personal liberty. This book covers the provisions of criminal law, particularly those dealing with powers of arrest and detention and the safeguards against arbitrary exercise of those powers. It deals with preventive detention, detention pending investigation and trial, and punitive detention following conviction. It makes a strong case for further safeguards to reinforce the right to personal liberty. The discussion highlights what needs to be done further to ensure full enjoyment of the most precious right. The book shows that the justifications for punitive detention, namely, deterrence, reformation, and rehabilitation have turned out to be illogical and irrational. It advocates prevention of crime and reparation rather than punishment by way of imprisonment following conviction.Less

Arrest, Detention, and Criminal Justice System : A Study in the Context of the Constitution of India

Bellary Uma Devi

Published in print: 2012-03-01

The right to life and personal liberty is the most cherished one of all the human rights. The enjoyment of all other rights depends upon this basic right. This book is a significant contribution to the literature on the right to personal liberty. This book covers the provisions of criminal law, particularly those dealing with powers of arrest and detention and the safeguards against arbitrary exercise of those powers. It deals with preventive detention, detention pending investigation and trial, and punitive detention following conviction. It makes a strong case for further safeguards to reinforce the right to personal liberty. The discussion highlights what needs to be done further to ensure full enjoyment of the most precious right. The book shows that the justifications for punitive detention, namely, deterrence, reformation, and rehabilitation have turned out to be illogical and irrational. It advocates prevention of crime and reparation rather than punishment by way of imprisonment following conviction.

When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to ...
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When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law. The solution lies in developing a tort that is structurally akin to the common law right to privacy that, alongside the recognition of property rights in some instances, is able to adequately protect interests that arise in bodily material. This recommendation is developed through two main inquiries. First, the book assesses when a person ought to be able to possess, control, use, or profit from bodily material. Emerging from this assessment are two sets of values that arise in bodily material. Bodily material may be valuable because it retains a functional unity with the body or remains as the medium of social experience, and bodily material may be valuable as a material resource that is in short supply. Second, the book assesses whether property law represents the most appropriate structure of rights and duties to protect the entitlements that a person may exercise in bodily material. This inquiry identifies the conceptual and structural features of property law and identifies the limits to its appropriate application. As part of this analysis, an alternative to property law is developed with reference to the right to bodily integrity and the right to privacy.Less

Being and Owning : The Body, Bodily Material, and the Law

Jesse Wall

Published in print: 2015-06-01

When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law. The solution lies in developing a tort that is structurally akin to the common law right to privacy that, alongside the recognition of property rights in some instances, is able to adequately protect interests that arise in bodily material. This recommendation is developed through two main inquiries. First, the book assesses when a person ought to be able to possess, control, use, or profit from bodily material. Emerging from this assessment are two sets of values that arise in bodily material. Bodily material may be valuable because it retains a functional unity with the body or remains as the medium of social experience, and bodily material may be valuable as a material resource that is in short supply. Second, the book assesses whether property law represents the most appropriate structure of rights and duties to protect the entitlements that a person may exercise in bodily material. This inquiry identifies the conceptual and structural features of property law and identifies the limits to its appropriate application. As part of this analysis, an alternative to property law is developed with reference to the right to bodily integrity and the right to privacy.

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